Right to family life: children whose mothers are in prison

Rona Epstein
Monday, 23 September 2019

Rona Epstein calls for urgent action to ensure children’s rights are met in the criminal justice system

The Parliamentary Joint Committee on Human Rights has issued its report on children’s rights when mothers are sentenced to imprisonment. The report is clear that there is an urgent need for reform.

When a judge or magistrate is considering sentencing a mother to prison, her child’s right to respect for family life should be a central concern.  But all too frequently this is not the case. 

An estimated 17,000 children each year are separated from their mothers when those mothers go to prison. The vast majority serve short periods for non-violent offences. Women offenders have frequently experienced severe and multiple disadvantages. Women in prison have often been victims of much more serious offences than those for which they have been convicted. According to the Prison Reform Trust

  •    57 per cent of women in prison report having been victims of domestic violence 
  •    More than half (53 per cent) report having experienced emotional, physical or sexual abuse as a child compared to 27 per cent of men. 

Impact of future problems

Studies have shown that children whose mothers are sent to prison are more likely than their peers to have future problems. These include an increased likelihood of criminal offending, mental health problems, and drug and alcohol addictions. They are also likely to earn less than their counterparts as adults and to stop education at a younger age than is the norm.

Courts often lack adequate information about whether the defendant has children, and what the impact of a custodial sentence would be on them. When sentencing a mother the judge or magistrate must make reasonable enquiries to establish whether the offender is the primary carer of a child.  If this is the case, a pre-sentence report must be made available at the sentencing hearing, unless there are exceptional circumstances.  Sentencers must ensure they have sufficient information about the likely consequences of separation of the child from the primary carer, including hearing from the child, if appropriate. 

Sentencers – judges and magistrates – should state in their sentencing remarks how they have taken this information into account. The impact of sentencing on children must be a distinct consideration to which the courts give full weight. This duty, which reflects existing case law, should be given statutory force.

Respecting children’s rights

In order to ensure that children’s rights to family life are respected, every step should be taken to enable children to maintain positive relationships with their mothers. The Department of Education, working with the Ministry of Justice, must revise the framework for safeguarding and promoting the welfare of children so that much greater attention is paid to the needs of children when mothers go to prison. Kinship carers who step in to care for children of mothers in prison should be entitled to financial and practical support.  Non-means tested financial help should be made available to visit their mothers, or primary carers, in prison.  Contact between parent and child should be premised on the child’s right to respect for family life rather than the parent’s behaviour in prison (other than in exceptional circumstances).  The Committee Chair, Harriet Harman MP said: ‘Visits of children to their mother in prison should not be part of the Incentives and Earned Privileges Scheme. How can it possibly be right to punish children for their parents’ behaviour?’ 

The report recommends that, other than in exceptional circumstances: if a baby is born during the mother’s sentence, they should both go directly from hospital to a Mother and Baby Unit (MBU), and that when a mother with a baby is sent to prison, the sentence should not start until a place is secured in an MBU.

The Committee found a lack of reliable data on the number of mothers in prison, the number of children whose mothers are in prison and the number of women who are pregnant and give birth in prison. It should be mandatory to ask all women entering prison whether they have dependent children and their ages; this should be cross-referenced with child benefit information. An annual census in prisons should ask women about dependent children. The data should be collated and published. 

As far back as 2007, Baroness Corston said, ‘The effects on the 18,000 children every year whose mothers are sent to prison are so often nothing short of catastrophic’. This important report must lead to urgent action to give children’s rights their proper place in the criminal justice system.

Rona Epstein is an Honorary Research Fellow at Coventry Law School.